Opinion
No. COA03-735
Filed April 6, 2004 This case not for publication
Appeal by defendant from judgments entered 9 May 2002 by Judge Peter M. McHugh in Randolph County Superior Court. Heard in the Court of Appeals 15 March 2004.
Attorney General Roy Cooper, by Assistant Attorney General Belinda A. Smith, for the State. Antjuan Antonio Williams, pro se; Walter T. Johnson, Jr., filed brief for defendant appellant but has withdrawn as defendant's counsel.
Randolph County Nos. 00 CRS 119-21.
On 18 September 2000, defendant Antjuan Antonio Williams was indicted on charges of first-degree statutory rape, first-degree statutory sexual offense, and taking indecent liberties with a child. The case was tried at the 6 May 2002 Criminal Session of Randolph County Superior Court.
The evidence presented at trial tended to show the following: In 1998, the victim (S), lived with defendant, her mother, and her two brothers. S alleged that on several occasions, defendant raped her vaginally and anally, and forced her to perform oral sex. Specifically, S testified that he tried to enter her vaginally and anally, and that it hurt. S also stated that defendant made her "suck his worm" and described defendant ejaculating.
Defendant was convicted of attempted first-degree rape, first-degree sexual offense with a child, and taking indecent liberties with a child. Defendant was sentenced to a term of 180 to 225 months' imprisonment for the attempted rape charge, a consecutive term of 288 to 355 months' imprisonment for the first-degree sexual offense conviction, and a concurrent term of fifteen to eighteen months' imprisonment for the indecent liberties charge. Defendant appeals.
We first consider whether the trial court erred by denying defendant's motion to dismiss. Defendant contends that there was a fatal variance in regard to the date of the offenses in the indictments and the evidence adduced at trial. In the indictment for first-degree sex offense with a child, the date of offense is listed as 10 June 1998. In the indecent liberties indictment, the date of offense is listed as 25 May 1998. Defendant raises as an alibi that he was not living with the children on these dates.
After careful review of the records, briefs and contentions of the parties, we find no error. We initially note, in regard to defendant's contentions about an alibi defense, that defendant did not raise any alibi defense with the trial court when making his motion to dismiss, and cannot raise the argument for the first time on appeal.
Moreover, our Supreme Court has stated that
a child's uncertainty as to the time or particular day the offense charged was committed goes to the weight of the testimony rather than its admissibility, and nonsuit may not be allowed on the ground that the State's evidence fails to fix any definite time when the offense was committed where there is sufficient evidence that the defendant committed each essential act of the offense.
State v. Effler, 309 N.C. 742, 749, 309 S.E.2d 203, 207 (1983). Additionally, this Court has stated that:
"the date given in the bill of indictment is not an essential element of the crime charged and [that therefore] the fact that the crime was committed on some other date is not fatal." In that same vein, we have also stated that a "variance between allegation and proof as to time is not material where no statute of limitations is involved."
State v. Blackmon, 130 N.C. App. 692, 696-97, 507 S.E.2d 42, 45 (1998) (citations omitted), cert. denied, 349 N.C. 531, 526 S.E.2d 470 (1998).
In this case there was sufficient evidence to sustain the conviction. S testified that defendant forced her to perform oral sex on him, and that he tried to rape her vaginally and anally. S's story was corroborated by several witnesses. S told her brother about the abuse, and he corroborated that on more than one occasion defendant had called her into his bedroom. Her brother testified that while she was in the bedroom, they could hear the bed moving and she would come out of the room limping. S also related the abuse to her foster mother, Golda Person, and described the abuse to a child protective services social worker, Stacy Cholula. S further demonstrated the abuse with anatomically correct dolls for Kimberly Madden, a counselor with Moses Cone Hospital Systems. Dr. Angela Stanley, a pediatrician with the Child Evaluation Clinic at Moses Cone Hospital testified that S suffered a penetrating trauma to her hymen. Accordingly, in the light most favorable to the State, a reasonable mind could conclude from this evidence that defendant committed the offenses charged by the indictments. State v. Cross, 345 N.C. 713, 717, 483 S.E.2d 432, 434 (1997).
We next consider whether the trial court erred by refusing to admit evidence that S had knowledge of sexual activity from watching sexually explicit videos. Defendant asserts that the trial court further erred by refusing to allow into evidence testimony that S had been sexually assaulted by a friend of her brother. Defendant contends that the evidence falls within one of the exceptions to Rule 412 because it was offered for the purpose of showing that the acts charged were not committed by defendant. We disagree.
Rule 412(b)(2) states:
Notwithstanding any other provision of law, the sexual behavior of the complainant is irrelevant to any issue in the prosecution unless such behavior . . . [i]s evidence of specific instances of sexual behavior offered for the purpose of showing that the act or acts charged were not committed by the defendant[.]
N.C. Gen. Stat. § 8C-1, Rule 412(b)(2) (2003). Here, the alleged sexual assault cited by defendant as being evidence that he was not the perpetrator of the offense occurred before S's baby brother was born, no later than March 1997. The alleged sexual abuse here occurred in 1998. Thus, there is no "temporal connection between the dates of the alleged offense and the evidence pointing to another perpetrator." State v. Holden, 106 N.C. App. 244, 247, 416 S.E.2d 415, 417, appeal dismissed, disc. review denied, 332 N.C. 669, 424 S.E.2d 413 (1992). Therefore, any evidence that someone else may have abused S before March 1997 is not relevant to show that defendant did not abuse her in 1998. See id; cf. State v. Ollis, 318 N.C. 370, 348 S.E.2d 777 (1986) (evidence that another man abused victim during same time period as alleged against defendant held admissible to explain physical evidence). Accordingly, the evidence was properly excluded as being irrelevant and confusing to the jury.
No error.
Judges WYNN and HUNTER concur.
Report per Rule 30(e).